Court of Appeal quashed suspended sentence for drug possession as it was a substantial departure from appropriate sentence.

THE COURT OF APPEAL

Record Number: 140CJA/2025 Neutral Citation No: [2026] IECA 15

Kennedy J. Butler J. Burns J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT/

- AND -

JASON TUTHILL.

RESPONDENT

JUDGMENT of the Court delivered (ex tempore) on the 28th day of January 2026 by Ms. Justice Isobel Kennedy.

1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s.2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence of 3 years imprisonment suspended for a period of 5 years, imposed for one count of Unlawful Possession of Drugs for Sale and Supply contrary to s.15A of the Misuse of Drugs Act 1977, as amended (count 4). On imposing sentence, the Court took into consideration two counts of Unlawful Possession of Drugs contrary to s.3 of the Misuse of Drugs Act 1977, as amended (counts 1 and 2), and one count of Unlawful Possession of Drugs for Sale and Supply contrary to s.15A of the Misuse of Drugs Act 1977, as amended (count 3).

Factual Background

2. The respondent had sought a loan from a bank of €5,000 for his struggling business but was refused. A man put him in touch with another man in Spain who gave him the money he sought, to be paid back in instalments of €500 per week. After several weeks, the respondent could no longer meet the repayments, and an individual arrived at his home and demanded the loan be paid back in full. As the respondent could not repay the loan, he was told to go to County Laois to collect a package and bring it home. He was told that a second package would arrive at his place of business. Gardaí arrived at the premises shortly after this second package arrived. The respondent informed Gardaí of the location where he collected the first package. He also told the Gardaí that these people threatened him, that he was in fear for his life, and that the individual who had come to his home knew where his wife and children attended work and school and the cars that they drove.

3. This was an intelligence led operation in which members of the Gardaí obtained a Search Warrant from Naas District Court and within hours had arrived at the premises. The Gardaí found approximately 20kg of cannabis with a value of €399,470.

Personal Circumstances of the Respondent

4. The respondent was 49 years old at the time of the offending and has a wife and 4 children. Family members were present in court with the respondent, and his father gave character evidence at the sentence hearing. Further character references from members of the respondent’s friends and family were handed in to the court. The respondent was working as a manager of a business at the time of sentencing and was a functioning member of society.

5. Garda Sheehan gave evidence to the court during sentencing in which he acknowledged that the respondent was unaware of the value of the drugs involved and that the respondent was unlikely to come before the courts again. He also acknowledged the significant impact these events have had on the respondent’s family and his own mental health. A psychological letter was handed in to the court which referred to the respondent attending counselling on a bi-weekly basis. The court also heard that the respondent had been liaising with Gardaí with a view to speak to young people at risk of going down a similar path.

6. The respondent had one previous conviction at the time of sentencing, a speeding offence from 2003, for which he received a fine.

Sentencing Remarks

7. In nominating the headline sentence, the sentencing judge stated as follows:-

“[I] agree with counsel's submissions that when looking at that, I am entitled, as the legislation indeed provides, to take into account whether or not there was a timely plea of guilty, which there was in this case, whether he was of assistance to the gardaí, which he was. And these features and the circumstances of the commission of the offence are sufficient, in my view, to take the case out of the mandatory minimum area, and therefore I'm not going to proceed to invoke the mandatory minimum of 10 years.”

8. The sentencing judge nominated a headline sentence of 8 years and then imposed a sentence of 3 years imprisonment to be suspended for 3 years. However, at this point in the sentencing, counsel for the Director commented on the leniency of the sentence. On foot of this, the judge extended the period of suspension to one of 5 years on the condition that the respondent enter a bond of €100 to be of good behaviour for that period.

Grounds of Application

9. The Director seeks a review of the sentence on the following grounds:

1. The learned trial Judge having nominated a headline sentence of 8 years erred in principle by failing to properly evaluate and assess the mitigation offered on behalf of the Respondent in terms of its being 'exceptional and specific’ in the circumstances of the case.

2. The reduction of the headline sentence to the actual sentence imposed was unwarranted and disproportionate in its scope and amounts to an error in principle.

3. The suspension of the sentence imposed in its entirety was unwarranted and unduly lenient in the circumstances of the case and amounts to an error in principle.

Submissions of the Director

10. The Director submits that while she is not taking issue with the headline sentence nominated by the sentencing judge itself, there were no factors in this case that were ‘exceptional and specific’ to reflect the sentence imposed of 3 years imprisonment – a reduction of 62.5%. While the respondent had entered into an early guilty plea, the Director notes that there was little option for him to do so, as he was the proprietor and the only person present when the Gardaí arrived. The Director also notes that although there was a certain amount of duress on the respondent in relation to the finances of his business, this was during a time where this was not exceptional in this country.

11. The Director refers to the decision in People (DPP) v O’Grady [2018] IECA 247. In this case, the respondent was involved in the transport of 20kg of Cannabis with a value of €122,000, for which he received a 5 year sentence which was suspended in its entirety.

On appeal, this Court held that while there were factors that justified the substantial departure from the statutory minimum, the sentencing judge’s decision to suspend the sentence in its entirety was “simply a step too far”.

12. In relation to the reduction in light of the mitigating factors, the Director submits that the reference to the respondent being fully cooperative with members of the Gardaí was the minimum that could be expected in circumstances of the premises being searched with the respondent present. It is submitted that the respondent did not reach the threshold outlined in s.27 3(D)(b)(ii) of the Misuse of Drugs Act 1977, which provides:-

(b) Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including—

(i) whether that person pleaded guilty to the offence and, if so—

(I) the stage at which he or she indicated the intention to plead guilty, and

(II) the circumstances in which the indication was given, and

(ii) whether that person materially assisted in the investigation of the offence.

[Emphasis added]

13. The Director contends that the reduction in sentence given amounted to an error in principle, as there was insufficient justification for it. It is submitted that although mitigation was correctly allowed for the respondent’s cooperation with the Gardaí, the material assistance given by the respondent in this case was basic assistance, rather than material assistance.

14. The Director submits that there is nothing exceptional about a plea of guilty, especially in the context of s.15A offences, referring to the case of People (DPP) v Stephen Sarsfield [2019] IECA 260, where at para 15, this Court noted “[the] levels of pleas across all s.15A cases which is understood to be running at 95%.”. The Director contends that the sentencing judge lost sight of the gravity of the offending, in particular the amount and value of the drugs involved.

15. It is submitted that the sentencing judge did not take into account the rationale provided in s.27(3D)(a), which states:-

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

16. It is accepted that the accused was not involved in drugs solely for financial gain, in the sense that he was not making a profit for himself or an organisation, however the Director submits that the respondent’s motive for getting involved in drugs, being to lessen his own losses, is a lesser type of financial gain.

17. The Director contends that the sentencing judge lost focus in allowing for so much mitigation in this case, that it went against the broader standard of mitigation. It is also submitted that the sentencing judge failed to adequately consider the issue of deterrence in this case, which involved a significant quantity of drugs. The Director contends that the suspension of the full sentence remains an error in principle.

Submissions of the Respondent

18. The respondent submits that considering the jurisprudence of the Court, the volume of drugs and the factual matrix of the case, the sentencing judge correctly identified a headline sentence of 8 years imprisonment. The respondent refers to the case of People (DPP) v Harris [2024] IECA 257, among others, in which a headline sentence of 7 years imprisonment was nominated in circumstances where the accused had been in possession of €478,391 worth of drugs and €22,450 in cash.

19. The respondent submits that the sentencing judge had appropriately considered the mitigating factors in this case, referring to the respondent’s co-operation with the Gardaí, which was of material significance; the early guilty plea; the numerous character references from friends and family; work references; as well as the fact the prosecuting Garda accepted that the respondent was unlikely to come to Garda attention again. It is noted that the sentencing judge acknowledged the fact that the respondent was not benefitting directly from the offending, but was merely clearing a debt owed.

20. It is submitted there was no direct application made to the sentencing court to find that this case fell into an ‘exceptional’ category, it was in the sentencing court’s discretion to determine this based on the mitigating factors of the case. While it is accepted that the sentencing judge took an exceptional step in imposing a wholly suspended sentence, in light of the mitigating factors in this case, it is submitted that this is not a gross departure from what would have been considered appropriate. The sentencing judge noted that this was, “one of those unusual cases where I think it is only fair to suspend the sentence in full and to allow him to continue to be in the community.”

Discussion

21. No issue arises with regard to the nomination of the headline sentence of 8 years imprisonment or with the judge’s decision to depart from the presumptive mandatory minimum sentence. The issues rest with the reduction for mitigation and with suspending the entirety of the sentence imposed.

22. The principles for determining undue leniency reviews are well-settled at this point commencing with People (DPP) v Byrne [1995] 1 ILRM 279 in 1994, and with a distillation of the principles in People (DPP) v Stronge [2011] IECCA 79 in 2011. The onus rests on the Director to establish that the sentence is unduly lenient so that the divergence from the sentence imposed and that which ought to have been imposed is an error in principle.

Only if that point is reached will this Court intervene. The sentence imposed must constitute a gross departure from the appropriate sentence in the particular circumstances presenting.

23. It is clear that the value of the substance in question was considerable; almost €400,000, and the Director properly emphasises the market value attributed to the drugs found. The respondent’s role is obviously of significance in determining the appropriate headline sentence, and in that regard the evidence appears to place the respondent at a very low level. This arose from a question posed by the judge where he stated:-

“Q. JUDGE: …he was just a guy they were preparing to use once and that was it?

A. Yes, Judge. Usually in these circumstances it's someone at very low level, a kind of vulnerable individual…”

24. The judge properly acknowledged that the offence before him was of a serious order, and taking account of the aggravating factors and the respondent’s role, nominated 8 years as the headline sentence.

25. As stated, the real issues here are twofold; the very generous discount for mitigation, and the suspension of the entire sentence.

26. The mitigating factors have been set out for this Court and undoubtedly, they are many.

They include the early plea of guilty, the co-operation with the Gardaí, the absence of previous convictions, the evidence that it is unlikely he will come to the attention of the courts in the future, his admissions, the impact on his mental health, the support of his family, and the testimonials furnished to the Court. Added to this is the clear and genuine remorse and shame he has expressed, and his efforts to rehabilitate himself and contribute in a positive way to society by contacting the Gardaí with a view to advising young people of the dangers of involving themselves in this kind of activity.

27. The law places a high threshold for the Director in applications of this nature. It is well established that it is insufficient that this Court would impose a different sentence, or that the sentence may be viewed as being very lenient. There must be a situation whereby the judge’s decision in imposing sentence is a substantial departure from the appropriate sentence.

28. We consider that the reduction afforded for mitigation was excessive. There was, as stated, considerable mitigation, but not so as to justify a reduction from 8 years to 3 years. Moreover, the law regarding the suspension of an entire sentence is clear. There are cases which justify a wholly suspended sentence, but those cases are rare indeed. As stated by Murray CJ in People (Director of Public Prosecutions) v McGinty [2007] 1 IR 633, and relied upon in People (DPP) v Ryan and Rooney [2015] IECA 2:-

“[where] there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the interest of justice.”

29. Therefore, there must be special reasons which are wholly exceptional before a sentence may be suspended in full. In addition, per McGinty; the totality of factors in mitigation will not be sufficient.

30. The wholly exceptional circumstances here are somewhat difficult to identify. However, the judge, with reference to the requirement for exceptionality concluded:-

“[this] to me is one of those unusual cases where I think it is only fair to suspend the sentence in full and to allow him to continue to be in the community.”

31. In that regard, the respondent had obtained gainful employment and also had contacted the Gardaí, to which we have referred above.

32. We disagree with the judge that the desirability of him continuing in the community, (albeit as a person with the laudable aim of deterring others from criminal activity)

amounts to wholly exceptional circumstances.

33. We find that the sentence imposed was a substantial departure from that which ought to have been imposed, thus constituting an error in principle. Accordingly, we will quash the sentence imposed and proceed to re-sentence de novo as of today’s date.

Re-sentence

34. We consider, in light of the aggravating factors and having considered his role in the activity, that 8 years is the appropriate headline sentence. On a consideration of the extensive mitigating factors, to include the material received today, we will reduce that to a sentence of 5 years.

35. Taking account of the efforts to rehabilitate himself and his attempts to contribute in a meaningful way to the community, we will suspend the final 2 ½ years of that sentence.